By Tanya Metaksa
What’s New—
Florida—Florida Supreme Court shoots down anti-gun constitutional amendment; Mayor of West Palm Beach signs emergency order closing gun stores;
Oklahoma—Gov. Stitt signed SB1081, the anti-red flag bill;
Federal
In 2019 the Trump administration nominated Chuck Canterbury, a former President of the Fraternal Order of Police (FOP), to head BATFE. However, the Senate Judiciary Committee began to stall on this nomination as complaints from gun owners began to emerge. In February of 2020 he was renominated. After a disastrous hearing where he stated that his opinions on gun laws are in accordance with the FOP and thus he supported red flag confiscation orders, and a ban on semi-automatic firearms while opposing S.69, Senator Cornyn’s Constitutional Concealed Carry Reciprocity, the nomination has been pulled by the administration.
As reported earlier in 2020, the BATFE has released a new Form 4473. It will be mandatory for all FFLs to use beginning Nov. 1, 2020. For information please check here.
COVID-19, protest rallies, riots and vandalism
For those of us who live in Red States, the burden of dealing with COVID-19 regulations has not been as severe as those that live in the Blue States. However, the House of Representatives led by Speaker Nancy Pelosi, the woman with the designer kitchen appliances filled with designer/very expensive ice cream, is attempting to have every American share the pain. At the beginning of last week, she announced that the House was NOT coming back into session. After writing yet another $3 trillion-dollar bill that does very little to save and promote jobs for Americans, she has decided that the House can vote by proxy with members staying thousands of miles away from The Capitol in Washington, DC. USNews, hardly a right leaning publication, led off their article on the vote with:
Neither Civil War nor Great Depression nor any other national crisis has pushed the House to allow lawmakers to vote by proxy — without being “present,” as the Constitution requires. That’s about to change during the coronavirus pandemic.
As someone who has been involved with the legislative process for well over half-a-century, I know that this is unconstitutional. Also most of the Executive orders being written in governors’ offices throughout the country are also unconstitutional. It will take a number of lawsuits filed across the country to remedy this situation. So why is the rewriting of the rules of the House of Representatives important? US News summed it up succinctly:
Under the new rules, House lawmakers will no longer be required to travel to Washington to participate in floor votes. They will be allowed to vote by proxy — assigning their vote to another lawmaker who will be at the Capitol to cast it for them. Eventually, a provision allows for direct remote voting, once the technology is approved.
Under these new rules one Representative will be able to vote for 10 other Representative by proxy. This is strictly unconstitutional.
The Second Amendment meets COVID-19
Most states mandated that firearms retailers were “Essential businesses”, but several did not. The below listed states/localities have still extensive restrictions on businesses.
California: Gun stores/ranges have not been determined by Gov. Gavin Newsom to be “essential service” and thus are to be closed with the known exception of Culver City, Los Angeles County, and Shasta County. There is a lawsuit against Gov. Newsom that also includes the City of Los Angeles and the City of Burbank. Additionally, another lawsuit has been filed against jurisdictions in Northern California.
On May 13 Ventura County updated its Frequently Asked Questions regarding gun shops adding that gun shops “may fully open to the public provided they implement and register site-specific prevention plans as described www.vcreopens.com. “
Florida: According to Marion Hammer, Executive Director of Unified Sportsmen of Florida, the Leon County Tax Collecter will be reopening her office on June 1, 2020 but will NOT process “concealed weapon original applications.” Ms. Maloy can be reached at maloyd@leoncountyfl.gov. Ms Maloy is flouting Florida law and her announcement conflicts with the Executive Orders issued by Gov. Ron DeSantis.
Virginia: Gov. Ralph Northam’s latest executive order allows indoor shooting ranges to begin reopening on May 29, 2020, but he is now requiring Virginias to to wear face coverings in public indoor settings.
The following states have officially not listed firearms dealers as essential services or do not have state law that considers gun stores exempt from emergency closures: California, Massachusetts, New York, Oregon, and Washington.
2019-2020 Gun Control in the U.S. Congress
HR 6318:The Urban Progress Act of 2020: The alleged purpose of this bill is—To expand economic opportunities, improve community policing, and promote common-sense gun violence prevention in underserved communities, and for other purposes. This bill, among other measures will allow the BATFE to delay NICS checks for an indefinite amount of time. Something the anti-gun groups have been pushing for quite a while.
A group of anti-gun state Attorney Generals led by AG Washington State Bob Ferguson sent a letter to U.S. Senate leaders requesting they pass legislation to reauthorize the Violence Against Women Act (VAWA) citing the spread COVID-19. The letter can be found here.
Anti-gun Senators send letter to FBI and BATF: Senators Murphy (D-CT), Blumnethal (D-CT) and Markey (D-MA) sent a letter to the FBI and the BATF requesting these agencies to adopt very stringent policies concerning gun sales including suspending all delayed firearms transfers indefinitely and store firearms transfer records for more than the legally required 90 days, which could lead to a gun owner registry. The letter can be found here.
H.R. 5717 and S. 3254- are the most far reaching gun control proposals with one exception. H.R. 5717, introduced by Rep. Hank Johnson (D-GA), is basically the wish-list of all the gun controllers in the world without completely banning firearms. A federal gun license with background checks and a 7-day waiting period, banning every semi-automatic, banning every magazine with over 10-round capacity; red flag laws; 30% additional tax on firearms and 50% tax on ammunition, draconian safe storage requirements, suppressor bans, one-gun-a-month restrictions, and more gun-free zones. S. 3254, sponsored by Sen. Elizabeth Warren, commonly known as “Pocahontas,” grandfathered those weapons that are considered “assault weapons.” We all know that is a ploy to try to win some Republican votes for the measure. It is necessary for every gun owner to contact their Republican Senators and ask them to vote no on S. 3254.
Awaiting action in the U.S. Senate: In February 2019 the House passed two extreme gun control measures—H.R. 8, a universal background check bill, and H.R. 1112, a bill to extend the time from 3 days to 10 days if a prospective buyer is not cleared in a NICs check. These bills are still awaiting action in the U.S. Senate and could be incorporated into any new legislation that the House passes.
State Legislation
All state legislatures with the exception of Montana, Nevada, North Dakota, and Texas will be in session in 2020
The states of Alabama, Connecticut, Florida, Idaho, Indiana, Kentucky, Maine, Maryland, New Mexico, Oklahoma, Oregon, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia and Wyoming have adjourned.
The following states have postponed their legislative sessions as of May 19, 2020: Alaska, Colorado, Delaware, Georgia, New Hampshire, New York, Rhode Island and Tennessee
Alabama:
The Alabama legislature has adjourned.Thanks to the opposition of the Alabama Sheriffs Association (ASA) HB39, a lifetime Right-to-Carry Permit bill, did not make it to the Senate floor for a vote.
California:
On May 4, 2020 the legislature went back into session. The Public Safety Committees met and approved the following bills: AB2847, a microstamping bill; AB2363, fines for FFLs; AB2627, strengthening Red Flag Orders; AB2699, more handgun storage requirements; and SB914, more restrictions on loaning a firearm. Attorney General Xavier Becerra has extended Ex parte Gun Violence Restraining Orders to 90 days from the current 21 days.
Florida:
In November 2019 we reported that a Florida organization entitledBan Assault Weapons Now!,had obtained the required 103,000 signatures on a petition to include a constitutional amendment on the 2020 ballot that would ban so-called “assault weapons” in Florida. At that time Florida Attorney General Ashley Moody (R) petitioned the Florida Supreme Court for a written opinion on the language of the proposed initiative. She also requested “the opportunity to present argument in opposition to placement of this proposed amendment on the ballot. The proposed amendment’s title and summary are not clear and unambiguous and do not comply with the requirements of section 101.161(1), Florida Statutes. Indeed, the title and summary should not be submitted to Florida voters because the title and summary fail to inform voters of the chief purpose of the proposed amendment and are affirmatively misleading.”
The Florida Supreme Court agreed to review the constitutional amendment and on June 4 issued its ruling. After reviewing the summary wording which would appear on each ballot to ensure that it meets the legal requirements for clarity and ambiguity, the Florida Supreme Court ruled against the proposed ballot initiative. As a result, it will not be on either the 2020 ballot or the 2021 ballot in Florida.
The 4-1 decision, agreeing with AG Ashley Moody, ruled that the ballot summary dealing with the initiative’s grandfather clause allowing owners of “assault weapons” to retain them was contradictory and did not reflect the language of the proposed amendment. The majority wrote, that this summary “affirmatively misleads voters regarding the exemption.” The Court went on to state that the ballot proposal “misleads voters to believe that any lawful possessed assault weapons will continue to remain lawful.” The actual wording of the initiative states that the lawful ownership of an “assault weapon” terminates with the lawful owner’s death or loss of the weapon.
Illinois:
The legislature has reconvened for three days per week. Senate Bill 1966, the gun control package from 2019, is still waiting to be scheduled for a hearing in Senate Committee.
Iowa:
The legislature is scheduled to reconvene on June 3, 2020. HF2502, protecting shooting ranges from being shut down by local ordinances, has passed the House and is awaiting action on the Senate floor. HF
Louisiana:
The four House passed pro-gun bills: HB140, prevents local municipalities from restricting the possession of a firearm, a preemption law; HB334, allows person with a Right-to-Carry Permt to carry in a place of worship; HB781, legislates that firearms and ammunition manufacturers, distributors, wholesalers, suppliers and retailers are “Essential Business “and HB746, allows citizens who lawfully possess a firearm to carry concealed during mandatory evacuation under a declared state of emergency, were passed by the Senate Judiciary Committee on May 28, 2020.
Massachusetts:
The Joint Committee on Public Safety and Homeland Security’s action deadline of Feb.5 to act on any of the bills on its agenda yet to be rescheduled.
Michigan:
Following a protest by Michigan citizens against Gov. Whitmer’s draconian shutdown orders, the Michigan Capitol Commission considered unilaterally banning guns in the state capitol without a referendum. However, the vice-chairman of the Commission stated “we do not have jurisdiction to prohibit weapons in the building.” Expect to see some legislation introduced on this matter at some time in the future.
Minnesota:
The legislature passed HF4605, allowing applicants for Right-to-Carry Permits to apply electronically during the COVID-19 pandemic.
Mississippi:
The legislature has reconvened. HB1215, a firearms preemption improvement bill, that passed the House is now awaiting action in Senate Committees.
New Hampshire:
The General Assembly has suspended its public legislative session and is only holding hearings during the month of June.
New Jersey:
Outdoor shooting ranges reopen May 22. When the Senate Law and Public Safety Committee held a hearing Feb. 24 on S120, increasing the penalty for negligent gun storage, and S746, denying persons who have been convicted of “animal cruelty” from possessing a firearm, there was not a quorum and those bills were not enacted. However, they are still viable.
New Mexico:
Gov. Michelle Lujan Grisham amended her executive orders to allow gun stores to operat at 25% of fire code capacity.
Ohio:
SB317, allowing certain persons to be armed within a school safety zone, was before the Senate Government Oversight and Reform Committee for a hearing on May 27, 2020.
Oklahoma:
Gov. Stitt has signed SB1081, a bill to block enforcement of “Red Flag laws” otherwise known as “Extreme Risk Protection Orders.
Pennsylvania:
The Game Commission extends 2019-20 shooting range permits for an additional 2 months until August 31, 2020.
Wisconsin:
The legislature is meeting remotely. SB822, allowing persons with Right-to-Carry Permits to carry in churches, is awaiting action by the Senate Committee on Insurance, Financial Service, Government Oversight and Courts; there is not schedule for that Committee to meet.
Judicial
COVID-19 lawsuits
Loder v. Maine Intelligence Analysis Center et al:
On May 7, 2020 George Loder, an employee of the Maine State Police, filed a federal lawsuit against the Maine State Police Intelligence Analysis Center alleging that this unit illegally used and kept data on individuals that were demonstrating against a controversial Central Main Power transmission line. Mr. Loder alleges that the State Police kept information about people who had applied to buy guns; information that is to be destroyed after a sale is approved.
Massachusetts-McCarthy, et al. v. Baker, et al:
On April 9, 2020 The Second Amendment Foundation (SAF), Commonwealth Second Amendment (Comm2A) and Firearms Policy Coalition (FPC) filed a lawsuit in the US District Court for the District of Massachusetts. Shortly thereafter the NRA filed an amicus brief in this lawsuit that “challenges the Defendants’ acts of eliminating all lawful channels of access to constitutionally protected arms and ammunition by mandating the closure of all businesses that sell firearms and ammunition to the consumer public. On March 24, 2020 Governor Baker designated various businesses as “essential” he did not include firearms and ammunition retailers. On March 31 Gov. Baker revised the list to include workers “supporting the operation of firearm or ammunition product manufacturers, importers, and distributors.” On April 2, 2020 Jamison Gagnon, Commissioner of the Department of Criminal Justice Information Services, issued a directive that he would assist the enforcement of Gov. Baker’s COVID-19 Order No. 19 by targeting firearms dealers with audits of firearms sales. On May 7 after hearing the parties involved US District Court Judge Douglas P. Woodlock issued an injunction against the bans on the operation of firearm and ammunition retailers imposed by Massachusetts Governor Charlie Baker and others. ORDERED: 1. Firearms dealers licensed pursuant to Mass. Gen. L. ch. 140, § 122 shall be permitted to conduct sales of firearms and other goods, and may sell ammunition if licensed pursuant to Mass. Gen. L. ch. 140, § 122B, by appointment only, with not more than four appointments per hour. Such firearms dealers are limited to operating only during the period 9:00 a.m. and 9:00 p.m. daily, subject to any further land use limitations imposed by the local government in the jurisdiction where the premises are located as are currently in force.
Cliff Christopher Maloney v. FL Department of Agriculture and Consumer Services:
As promised Cliff Maloney, President of Young Americas for Liberty, filed a lawsuit against Commissioner Nikki Fried claiming she is depriving Floridians of their Second Amendment rights. Although Florida Attorney General Ashley Moody wrote a letter to Fried saying that Fried’s policy was unconstitutional, for at least six weeks Floridians have not been able to to apply for a concealed carry permit online.
California-California Governor Gavin Newsom signed an executive order shutting down many businesses, but he left the decision on firearms retailers and gun ranges up local officials: Sheriffs and Public Health Officers. In doing that there has been a great deal of misinformation, changing of decisions by officials and general confusion. And a result several lawsuits have been initiated to first institute temporary restraining orders (TRO) to stop the closures and if the TRO is not initiated, then to have a full blown court case that could take years. In Los Angeles this comedy of errors was played out during the four weeks from March 4, 2020 to April 6 when the Brandy, et al. v. Los Angeles Sheriff Alex Villanueva et. al was litigated concerning a TRO. Unfortunately, the United States District Court on April 6 denied the application for a TRO.
In Northern California another lawsuit, Altman, et al, v Santa Clara County, et al, was filed on March 31, 2020. A TRO in this case was denied on April 10 and no information has been provided since. A lawsuit, McDougall, et al. v. County of Ventura, CA, et al., was filed on April 14, 2020.
A pre-litigation demand was sent to California Attorney General Xavier Becerra regarding unlawful firearm and ammunition delays on April 14, 2020.
Georgia-Walters v. Kemp:
On March 14, 2020 Judge Keith Wood, a Probate Judge in Cherokee County, Georgia declared that Weapons Carry Licenses “are deemed non-essential and will not be accepted during the pendency of the judicial emergency.” As a result the Second Amendment Foundation, the Firearms Policy Coalition and Lisa Walters filed a complaint on April 16, 2020 for injunctive and declaratory relief based on constitutional rights.
Massachusetts-McCarthy, et al. v. Baker, et al:
During the last week of April NRA filed an amicus brief in this lawsuit that “challenges the Defendants’ acts of eliminating all lawful channels of access to constitutionally protected arms and ammunition by mandating the closure of all businesses that sell firearms and ammunition to the consumer public.” On March 24, 2020 Governor Baker designated various businesses as “essential” he did not include firearms and ammunition retailers. On March 31 Gov. Baker revised the list to include workers “supporting the operation of firearm or ammunition product manufacturers, importers, and distributors.” On April 2, 2020 Jamison Gagnon, Commissioner of the Department of Criminal Justice Information Services, issued a directive that he would assist the enforcement of Gov. Baker’s COVID-19 Order No. 19 by targeting firearms dealers with audits of firearms sales.
New Jersey-Kashinsky v. Murphy:
On March 26 a motion for an injunction was filed in federal court in New Jersey as a result of the closure by Governor Philip D. Murphy and State Director of Emergency Management and Superintendent of the New Jersey State Police Patrick J. Callahan of “any and all means law-abiding private citizens to obtain firearms in New Jersey.” The complaint goes on to say that this is not a situation where all retail establishments have been closed as the State has permitted retail sellers of other products such as alcohol, marijuana and office supplies to remain in business. Gov. Murphy by executive order on March 21 listed those business that were deemed “essential” and firearms dealers were not included in the lengthy list of essential service. On April 1, Gurbir S. Grewal, the Attorney General of New Jersey, wrote a letter that stated, “Colonel Callahan, in his capacity as State Director of Emergency Management, issued Administrative Order No. 2020-6 (“A.O. 2020-6”), which supplements Governor Murphy’s Executive Order No. 107. See Exhibit A. A.O. 2020-6 adds Federal Firearms Licensees (“FFLs”) to the list of essential retail businesses that may remain open, subject to specified requirements, during the ongoing public health emergency presented by the spread of SARS-CoV-2 — the “coronavirus.” Thus gun stores can remain open as long as they comply with the the COVID-19 guidelines for remaining in business. A comprehensive article written pre-settlement was published in Reason.com by Eugene Volokh.
New Mexico-Aragon v. Grisham:
In response to the COVID-19 pandemic Gov. Grisham closed gun stores and shooting ranges. As a result, on April 10, 2020 the National Rifle Association (NRA), The Second Amendment Foundation, New Mexico Shooting Sports Association, the Firearm Policy Coalition, other pro-gun advocacy groups and firearms business filed a federal lawsuit stating that “New Mexico’s government cannot suspend the Constitution and Americans’ individual freedoms.”
North Carolina-Stafford, et al. v. Wake County:
Wake County Sheriff Gerald Baker announced on March 24 the temporary suspension of pistol purchase permits through April 30, 2020 with 755 permits pending on that date. On March 29, a letter was sent to the Wake County Board of Supervisors announcing a complaint being filed against Sheriff Baker.
Pennsylvania-CRDF, et al., v. Pennsylvania Governor Tom Wolf:
This lawsuit seeks an injunction against Gov. Tom Wolf’s COVID-19 order of March 19, 2020 shuttering all businesses that are “not Life Sustaining.” Although the Pennsylvania Supreme Court reached a divided opinion that denied the injunction, Gov. Wolf took notice of Justice Wecht’s suggestion of an “accommodation” in allowing firearms retailers to conduct business. Although Gov. Wolf did not publicly announce a policy change regarding firearms dealers, but included the change in an updated list of “Life Sustaining Businesses”—Except that firearms dealers may operate physical businesses on a limited basis to complete only the portions of a sale/transfer that must be conducted in-person under the law, subject to the following restrictions: 1) all such sale/transfers will be conducted by individual appointment during limited hours only so as to minimize social interactions and congregating of persons; 2) the dealer will comply with social distancing, sanitization of applicable area between appointments, and other mitigation measures to protect its employees and the public.”
Non-COVID-19 2nd Amendment lawsuits
Rhode v. Becerra:
The plaintiff is Kim Rhode, an American OLYMPIC medalist that very few of her fellow citizens have ever heard about. She has won six Olympic Medals in skeet shooting/double trap in six consecutive Olympic Games since 1996. 3 gold medals, 1 Silver and two Bronze. She is also a six-time national champion in double trap. The issue is the 2016 California law that was passed by voters as Proposition 63. US District Judge Roger Benitez declared that the ammunition background check requirement for purchases violates the Second Amendment and declared it unconstitutional. However, hours after that decision The U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on the preliminary injunction by Judge Benitez. Thus all the restrictions on purchasing ammunition in California are in effect again. Further information on the original ruling can be found here.
Ross v. Melekas:
The Second Amendment Foundation, the Connecticut Citizens Defense League and two individual plaintiffs are suing the Connecticut enforcers of the magazine limitation on the basis of the Second and Fourteenth Amendments to the U.S. Constitution.
City of Philadelphia v. Rashad T. Armstrong:
In 2018 Larry Krasner, the newly elected Philadelphia District Attorney, decided to enforce a 2008 Philadelphia ordinance requiring 24-hour notice when a firearm was found to be missing. The first person to be charged with failure to report a lost or stolen firearm is Rashad Armstrong whose handgun was found in a traffic stop in 2018. On March 6, 2020 Armstrong’s attorney, Joshua Prince, argued that the Pennsylvania preemption statute prevents Philadelphia from enacting their own firearms ordinances.
Landmark Firearms LLC, et al v. Colonel Robert Evanchick:
See the background information under Pennsylvania legislation. On Dec. 20, 2019 Landmarks Firearms, US Rifle petitioned to stop the Commissioner f Pennsylvania State Police (Robert Evanchick) enjoined from implementing the new PA policy that states an unfinished receiver meets the definition of “firearm.” After a January 21, 2020 hearing on the application Commonwealth Court Judge Kevin Brobson found that the PA State police had violated the due process rights of Pennsylvania residents and businesses and issued an injunction is until the final disposition of the Petition for Review, including appeals has been reached.
Thomas, et.al. v. Illinois State Police:
The Second Amendment Foundation and Illinois State Rifle Association have sued the Illinois State Police in federal court over the agency’s sluggish handling of Firearm Owner Identification (FOID) card applications and renewals. For the story.
Jones, et al v. Becerra:
This lawsuit is challenging the “California Age-Based Gun Ban” that prohibited adults between the ages of 18 and 20 from acquiring any firearm. United States District Judge denied the applications from three anti-gun groups Everytown, Giffords Law Center and Brady from filing amicus briefs as their “partisanship is apparent.”
City of Kansas City, MO v. Jimenez Arms, Inc., et al:
Kansas City, MO is suing a number of firearms companies for supplying firearms to James Samuels, a former Kansas City Fire Department Captain who was charged and is being prosecuted for federal gun crimes. This suit is being supported by Everytown Law, part of Michael Bloomberg’s Everytown for Gun Safety.
